Citation Nr: 0834191
Decision Date: 10/03/08 Archive Date: 10/07/08
DOCKET NO. 04-43 903 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Oakland, California
THE ISSUES
1. Entitlement to service connection for Type II diabetes
mellitus.
2. Entitlement to service connection for neuropathy of the
hands and feet.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
David A. Brenningmeyer, Counsel
INTRODUCTION
The veteran served on active duty from September 1961 to
September 1964.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 2004 decision by the RO which, in
pertinent part, denied service connection for Type II
diabetes mellitus and neuropathy of the hands and feet. In
May 2006, the Board remanded the case for additional
development.
FINDINGS OF FACT
1. The veteran has Type II diabetes mellitus; he also has
neuropathy of the hands and feet that can be attributed
thereto.
2. It is at least as likely as not that the conditions of
the veteran's military service involved actual duty or
visitation in the Republic of Vietnam.
CONCLUSIONS OF LAW
1. Resolving reasonable doubt in the veteran's favor, Type
II diabetes mellitus can be presumed to have been incurred as
a result of exposure to herbicides in service. 38 U.S.C.A.
§§ 1110, 1116 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102,
3.303, 3.307, 3.309 (2007).
2. Neuropathy of the hands and feet is proximately due to or
the result of Type II diabetes mellitus. 38 U.S.C.A.
§§ 1110, 1116 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102,
3.303, 3.307, 3.309, 3.310 (2007); 38 C.F.R. § 3.310 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran maintains that he had visitation in Vietnam in
1963. He says that on or about June 25, 1963, he boarded a
transport (which he believes was a C120 cargo plane) in
Thailand; that he flew to Saigon; and that, after a matter of
days, he boarded another transport (a C130 cargo plane) bound
for Okinawa. He then caught a commercial flight to Travis
Air Force Base, in California. He maintains, in essence,
that he has Type II diabetes mellitus and neuropathy of the
hands and feet that can be attributed to herbicides to which
he was exposed while in Vietnam.
Under applicable law, service connection is warranted where
the evidence of record establishes that a particular injury
or disease resulting in disability was incurred in the line
of duty in the active military service or, if pre-existing
such service, was aggravated thereby. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection
is also warranted where the evidence of record shows that a
chronic disability or disorder has been caused or aggravated
by an already service-connected disability. 38 C.F.R.
§ 3.310 (2007); 38 C.F.R. § 3.310 (2006); Allen v. Brown,
7 Vet. App. 439 (1995).
If a veteran was exposed to an "herbicide agent" during
active military, naval, or air service, Type 2 diabetes (also
known as Type II diabetes mellitus or adult-onset diabetes)
is presumed to be service connected if the requirements of
38 C.F.R. § 3.307(a)(6) are met, even though there is no
record of the disease during service, provided that the
rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are
also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp.
2007); 38 C.F.R. § 3.309(e) (2007). In this context, the
term "herbicide agent" is defined as a chemical in an
herbicide used in support of the United States and allied
military operations in the Republic of Vietnam during the
period beginning on January 9, 1962 and ending on May 7,
1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD;
cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i)
(2007).
Under 38 C.F.R. § 3.307(a)(6), a veteran who, during active
military, naval, or air service, served in the Republic of
Vietnam during the period beginning on January 9, 1962 and
ending on May 7, 1975, is presumed to have been exposed
during such service to an herbicide agent, unless there is
affirmative evidence to the contrary. Id.
§ 3.307(a)(6)(iii). Under current regulation, "service in
the Republic of Vietnam" includes service in the waters
offshore and service in other locations if the conditions of
service involved duty or visitation in the Republic of
Vietnam. Id.
In the present case, the evidence of record clearly shows
that the veteran has been diagnosed with Type II diabetes
mellitus. The evidence also shows that he has neuropathy of
his hands and feet that can be attributed thereto. See,
e.g., VA examination report dated in October 2003. The only
question that remains, in terms of establishing service
connection for the disabilities at issue, is whether the
conditions of his service involved duty or visitation in the
Republic of Vietnam.
The Board finds that the evidence supports such a finding.
Statements made by an individual in connection with an
application for benefits may in some cases be regarded as
suspect as a result of his or her pecuniary interest in the
outcome of the case; a concept referred to as "bias." In
this case, however, the record contains multiple lay
statements indicating that the veteran has a long history of
consistently reporting to others-outside the context of any
application for benefits-that he had duty or visitation in
Vietnam during service. Indeed, the record shows that he
reported a "brief stop" in Vietnam when he was examined by
VA in April 2002; more than 16 months before he filed an
application for benefits. The service department has not
been able to determine whether the veteran was physically
present in Vietnam during service. However, it has furnished
documentation that shows he departed Thailand in June 1963
and did not arrive at Travis Air Force Base until six days
later. That evidence tends to support the veteran's account
of events insofar as it demonstrates that several days passed
between the time that he departed Thailand and the time that
he arrived in California. In the Board's view, the totality
of the evidence-including the veteran's statements, the
statements from persons who have known him over the years,
and the evidence from the service department-demonstrates to
a reasonable likelihood (i.e., it is at least as likely as
not) that the veteran had actual duty or visitation in
Vietnam during service. Certainly, the Board cannot conclude
that the preponderance of the evidence is against such a
finding. Consequently, and resolving reasonable doubt in the
veteran's favor, the Board will grant service connection for
Type II diabetes mellitus and the associated neuropathy of
his hands and feet as presumptively due to in-service
exposure to herbicides. 38 C.F.R. § 3.102 (2007).
Because the Board is granting the veteran's appeal, there is
no need to engage in any analysis with respect to whether the
requirements of the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified
at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West
2002 & Supp. 2007)), have been satisfied with respect to the
question of service connection. That matter is moot.
ORDER
Service connection is granted for Type II diabetes mellitus.
Service connection is granted for neuropathy of the hands and
feet.
____________________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs